Copyright rules ‘no silver bullet’ for publishers

The annual Irish Music Rights Organisation (IMRO) and Law Society Annual Copyright Lecture has been told that an EU directive "clearly improves" the position of press publishers and journalists in their relationship with technology giants.

Dr Mark Hyland (IMRO Adjunct Professor of Intellectual Property at the Law Society) warned, however, that some of the wording in the directive was ambiguous, and could lead to litigation.

The lecture on 3 May focused on article 15 of Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market, which harmonises and modernises EU copyright law, and attempts to protect creativity in the digital age.

It heard from copyright experts and representatives from publishing and journalism, who told the event that very little had yet occurred in Ireland in response to the directive.

Mismatch

Article 15 is aimed at ensuring that press publishers are compensated for the re-use of their content by news aggregators run by 'Big Tech' firms, such as Google, Apple, Microsoft, and Yahoo.

It tries to address the 'value gap' – the mismatch between the revenue passing to Big Tech firms, and the much smaller revenue passing to the original creators of the protected work.

Dr Hyland said that the legislation was "no silver bullet", but there was now harmonised legal protection throughout the EU for press publishers and publications, strengthening their bargaining position against the news aggregators.

Press publishers now had a "clear legal right" that they could invoke against a digital platform that scraped their content without permission, he said.

'Short extract'

He pointed out, however, that there were important carve-outs, including: private or non-commercial use; acts of hyperlinking; and 'the use of individual words or very short extracts of a press publication'.

"How are we going to determine what a 'very short extract' is?" Dr. Hyland asked, adding that this phrase "could generate a lot of litigation".

He also expressed concern about the directive's requirement for journalists to receive "an appropriate share of the revenues" paid by the news aggregator to the press publisher in the context of a licence agreement.

"What is 'an appropriate share'?" he asked, adding that there was uncertainty about whether there would be transparency in such agreements.

The copyright expert pointed out that the Irish regulations on article 15, contained in SI No 567/2021, had been a verbatim transposition of already problematic terms in the actual directive.

"That's not very good from the point of view of legal certainty and clarity," he said.

Dr Hyland told the attendees that there had been a move away from copyright law to competition law in dealing with the relationship between the press and digital platforms, led by Australia's 2021 News Media Bargaining Code, which is overseen by the country's Competition and Consumer Commission , and had inspired similar rules in Canada, the US, and the UK.

Dr Hyland said that the Future of Media Commission had recommended a review of the impact of article 15 on the relationship between press publishers and digital platforms within 12 months of its transposition. Unfortunately, this had not happened, and it seemed that "the can had been kicked further down the road".

No obligation

Dr Ula Furgal (lecturer in Intellectual Property Law, School of Law, University of Glasgow) told attendees that, while the goals of the EU legislation were laudable, she was "not an enthusiast", pointing out that it did not create an obligation for a platform to bargain with a press publisher, nor was there an obligation on the platform to remunerate fairly.

"It only gives a legal basis for a publisher to go to a digital platform, and say 'you've been using my content – ​​now come and pay up'," she said.

She added that a small number of EU member states were following the Australian model, and giving a public authority the power to determine the level of remuneration in the event of a dispute.

Dr Furgal described this approach as "problematic", as it also gave platforms the right to seek a determination, depriving the publisher of the right to authorise publication.

She also expressed scepticism about the success of the Australian approach, saying that all deals that had been done in that country had been done outside the code – and that claims made about the financial benefits to publishers were only estimates, because nobody had the details of the agreements .

Share of revenue

The copyright expert said that there was still a lot of "wiggle room" for member states on how they implemented article 15.

Dr Furgal agreed with Dr Hyland that the directive did not state how an 'appropriate share' of revenue for journalists should be determined.

Some member states, like Ireland, had copied article 15 verbatim into national laws, but others had proposed widely differing figures – 2% to 5% in Italy, one-third in Germany, and a 50-50 split in Poland.

Dr Furgal pointed out that most countries had said nothing about the mechanisms for negotiating or distributing the 'appropriate share'.

Only Lithuania, she added, had set an exact figure for 'very short extracts': 125 characters.

'Complex relationship' with platforms

Colm O'Reilly (Chair of NewsBrands Ireland, and chief operating officer at the Business Post Group) said that there was "very little" or "very slow" action going on in Ireland on foot of article 15.

He stressed that Irish newspapers had a "complex relationship" with digital platforms.

"We use Google for advertising; we use Facebook for distributing our content," he stated.

O'Reilly said that publishers had taken the view that meaningful discussions would be more advantageous than adversarial ones.

He added that collective management organisations (CMOs) representing publishers had proven effective in other countries, but had yet to emerge in Ireland.

'Only a framework'

The NewsBrands' chair added that the Irish method of implementation, through a statutory instrument, had created only a framework.

"There is no thing in that framework that compels any tech platform to negotiate with an Irish publisher; more importantly, there are no consequences for not negotiating."

As a result, a CMO was a "difficult proposition" in Ireland, he said.

Asked why the Irish industry was no longer organised on a pan-European basis, O'Reilly pointed to the differing copyright laws across the EU.

He added that while, in theory, a statutory instrument could be amended more quickly, getting the Government to change it was not easy.

Sunday Independent journalist Mark Tighe commented that article 15 had provided a "brand new right" that journalists had not been on top of, and would have to look at quickly.

He added, however, that this Government had been very slow to look at laws that had an impact on journalism in general, and media came low on its list of priorities.